70 Mo. 654 | Mo. | 1879
This was an action on a policy of insurance against loss by fire, issued by the defendant on the dwelling house of one Cabanne, for a period of five years from May 24th, 1870. The premium for the entire period was paid when the policy was issued. On the 6th day of August, 1870, Cabanne borrowed money from one Fuchs, and to secure the payment thereof executed to him a deed of trust conveying the land on which the house stood, or the adjoining land. On August 8th, 1870, the following memorandum was made on the face of the policy: “August 8th, 1870. Loss, if any, made payable to F. Fuchs. G. T. Cram, secretary.” On September 17th, 1871, Cabanne sold the property insured to the plaintiff, Griswold, subject to the incumbrance in favor of Fuchs, gave him a deed therefor, and all the papers in his possession pertaining to the insurance and the deed of trust, and went with the son of the plaintiff to the office of the defendant in regard to the policy of insurance. What he did there Cabanne could not remember. He says he did whatever was required of him. The entries upon the policy register of the defendant, are as follows:
“ No. 3550. Name, J. Charless Cabanne. Term, five years. Commencement of risk May 24th, 1870. Expiration of risk May 24th, 1875. Amount insured, $4000. Rate, two per cent. Amount of premium, $80. On his two story frame dwelling on west side of King’s Highway near present terminus of Lindell Avenue. St. Louis, Missouri, August 8th, 1870. Loss, if any, made payable to F. Fuchs. G. T. C., secretary, &c. September 25th. Transferred to Wm. D. Griswold.”
The house was totally destroyed by fire on November 3rd, 1872, and at the time of the fire it was 150 feet north of the spot it occupied when it was insured. In its new position it was still “ on the west side of King’s Highway
The circuit court declared that, upon the foregoing facts, .the plaintiff was not entitled to recover, and rendered judgment for the defendant. The court of appeals reversed the judgment of the circuit court and remanded the cause, and defendant has appealed to this court. It was held by the court of appeals that the relation of insurer and insured continued between the defendant and Cabanne notwithstanding; the indorsement on the face of the policy made August 8th, 1870; and that the interest of Fuchs in the policy terminated when his debt was paid, and vested eo instanti in Cabanne’s vendee, the plaintiff, Griswold. It was further held that the visit of Cabanne and young Griswold to the defendant’s oflice, and the entry on the policy-register of the defendant of September 25th, “ Transferred to Wm. D. Griswold,” tended to show that the defendant accepted Griswold as the insured instead of Cabanne; that this entry was utterly without meaning, if it were not so construed, as there was nothing else to which it coukl be rationally made to refer. It could not mean that he was substituted for Fuchs, for no one but Fuchs was competent to make such substitution, and it could only mean that Griswold was substituted in the policy for Cabanne. It was further held by the court of appeals that when the nature of the risk is changed, or it is increased in degree, the underwriter is discharged ; but that whether there was such change or increase of risk consequent upon the removal of the building insured, from one spot to another, was in this case a question of fact for the jury. The opinion of the court of appeals, which is reported in 1 Mo. App. Rep. 97,